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RESIDENCE: Re L (Shared Residence Order) [2009] EWCA Civ 20

Date:4 FEB 2009

(Court of Appeal; Wall and Aikens LJJ and Bennett J; January 28 2009)

After the separation both parents continued to play a substantial role in the child's life. Eventually, on the mother's application to relocate to Israel, which was refused, the judge made a shared residence order. The father had mid-week contact, and staying contact on alternate weekends. The mother moved, without warning, from south to north London; the father followed as soon as he could make arrangements to do so. The child, now 5, started at a primary school in north London. The mother then applied to the court, seeking to relocate to Somerset, where she had obtained employment. She accepted that the shared residence order should remain in place, and proposed that the father should receive longer contact during the holidays to make up for the fact that mid-week contact would no longer be practical. The child's journey time between the two homes would be about 3? hours, and by public transport would involve taxi, bus, train and tube rides. The mother argued that she had been unable to obtain employment in London. The father opposed the move, arguing that it would seriously disrupt his relationship with the child, and that it was part of a pattern of moves designed to minimise his role in the child's life. The judge refused the mother permission to relocate, not by imposing conditions under Children Act 1989, s 11(7), but by varying the shared residence order to extend the father's contact with the child during the school week. He dismissed the father's application for a variation in the shared residence order, dividing the child's time equally between the parents on a 4 day rotation.

In what was believed to be the first 'internal relocation' case involving a pre-existing shared residence order to reach the Court of Appeal, the court dismissed the mother's appeal. It was wrong in principle to apply different criteria to the question of internal relocation simply because there was a shared residence order. Although in some, rare cases, an equal division of the children's time between the parents was appropriate, there was no doubt that a shared residence order could properly be made when there was a substantial geographical distance between the parties. Plainly a shared residence order was an important factor, but it was not a trump card preventing relocation. The judge below had been wrong to distinguish this case from the authorities on the basis of the shared residence order, and had failed to consider the likely effect on the mother of a refusal of permission. However, given the background to the case, in particular the mother's history of seeking to move away from the father, the judge had been entitled to conclude that relocation was not in the child's best interests .